Alerts

California Passes State-Wide Right to Recall Law: What Employers Need to Consider When Rehiring

Alerts / April 20, 2021

On April 16, 2021, California Gov. Gavin Newsom signed into law Senate Bill 93 (SB 93), which requires certain employers to rehire eligible employees who were previously laid off due to the COVID-19 pandemic.

Covered Employers:

The new law applies to an owner or operator of a hotel, private club, event center, airport hospitality operation, airport service provider, or an enterprise that provides building services, defined as janitorial, building maintenance or security, to office, retail, or other commercial buildings.

Covered Employees:

To be eligible for recall under SB 93, a laid-off employee had to have been employed by the covered employer for six months or more in the 12 months preceding Jan. 1, 2020, and their most recent separation from active service had to have been due to a reason related to the COVID-19 pandemic, including a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, nondisciplinary reason due to the COVID-19 pandemic.

Requirements:

Covered employers must follow SB 93’s recall procedures and timeline when recalling employees back to work. Specifically, covered employers must offer laid-off employees information about job positions that become available for which the employees are qualified, and offer positions to those laid-off employees based on a preference system. Under the preference system, if more than one employee is entitled to a position, the employer must offer the position to the employee with the greatest length of service based on the employee’s date of hire.

Employers must provide written notice of the offer as follows:

  • The notice to laid-off employees about the open position must be made in writing and within five days of establishing the new position.
  • Notice must be made either by hand or to the employee’s last known address, in addition to sending the employee a text and email, to the extent the employer possesses such information.
  • The laid-off employee must be given at least five business days, from the date of receipt, to accept or decline the offer.
  • If the employee accepts the position, then the employer must recall the employee back to work.
  • If a covered employer chooses not to recall laid off employees for a position based on the grounds that they lack qualifications, the employer must provide written notice explaining the reasons for the decision within 30 days.

Employers are prohibited from taking any adverse employment action against employees who try to enforce their rights under the new law. Further, employers must keep related records for three years, including records of communications regarding the layoffs and offers.

California employers should be sure to amend their recall and rehire policies and procedures to comply with SB 93. The law takes effect immediately and is set to remain in effect through Dec. 31, 2024.

If you have any questions about this new law, please reach out to a member of our Labor and Employment Group and we will be happy to assist.

Authorship Credit: Nancy Inesta and Annette Winters

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